Eugene Nursery and Primary School and Another vs Bhagwati Prasad and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for both the parties. This is tenants'' writ petition arising out of suit for eviction instituted against them by the landlord respondent No. 1 since deceased and survived by legal representatives on the ground of sub-letting in the form of S.C.C. Suit No. 20 of 1987, Bhagwati Prasad v. Smt. C.V. Eugene and another. Initially the suit was decided on 19.1.1994, however the said judgment and decree was set aside by Lower Revisional Court/A.D.J. through order dated 30.11.1996 and matter was remanded to the Trial Court. After remand, J.S.C.C., Lucknow through judgment dated 10.9.2003 decreed the suit. Against the said decree petitioners filed S.C.C. Revision No. 75 of 2003, which was dismissed on 14.1.2004 by A.D.J., Court No. 8, Lucknow, hence this writ petition.

Property in dispute is a house bearing No. 274/402, Rajednra Nagar, Lucknow containing five rooms, verandahs and other amenities. Rent is Rs. 550/-per month. Rent note was executed on 31.5.1967. It was stated in the plaint that defendant No. 1, Smt. C.V. Eugene, who died during proceedings before the Courts below and was substituted by her son Anand Eugene, had sublet the premises to defendant No. 2, Eugene Nursery and Primary School Society. Notice of termination of tenancy was given on 23.1.1987. Until then there was no default in payment of rent as according to the plaint allegations rent had not been paid since January, 1987.

The case of the defendants was that defendant No. 1 had taken the house on rent on 31.5.1967 for establishing a school and since then school was being run therein, that after sometime society was got registered to mange the school and as plaintiff himself got his son admitted in the school in July, 1967 itself who studied in the school until 1972 and as in the remaining part of the house landlord was residing, hence he was fully aware that school was being run therein. It was also stated that grand-daughter of the landlord was also admitted in the same school on 1.7.1977 and another grand son was admitted in August, 1977 who studied till 1982 and some other relations of the landlord were also admitted in the same school and a grand son Hitesh was admitted in 1986 in the school and at the time of filing of the suit, he was studying in the school. It was also pleaded that rent was always paid through cheque and that in the committee formed to select the teachers of the school, plaintiff landlord was also a member, and that defendant No. 1 never resided in the house in dispute, which was being used only and only for running school.

The only effective issue framed was regarding sub-letting.

The Courts below held that in the agreement of tenancy of 1967 defendant No. 1 was shown to be the tenant and it was not mentioned therein that for what purpose house was being taken on rent.

Defendant No. 1 could not be cross-examined as after her examination-in-chief she died. Courts below held that Sri S.N. Rao was manager of the society of the school and Smt. Rani Lila, its manager and at the time when the evidence were recorded Sri Sringar Singh Chauhan was the president and that manager, President and other members of the society were not relations of Smt. Eugene. Rent receipts were issued in the name of Smt. Eugene. Sri S.N. Rao, manager of the society/school stated that the society/school was got registered in 1968 and Smt. Eugene was member of management committee.

The Courts below placed reliance upon Ram Saran Vs. Pyare Lal and another, and Smt. Janki Devi v. G.C. Jain 1994 (5) SCC 337 and Roop Chand Vs. Gopi Chand Thelia, (holding that tenant had sublet the premises to a clerk). The next authority considered by the Courts below is Putin Bihari Lal v. Mahadev Dutt 1993 SC & FB 154, AIR 1988 SC 854. The Revisional Court has mentioned that both the parties admitted that landlord''s son was fully aware that school was being run in the premises in dispute.

Both the Courts below for recording finding of subletting placed reliance upon sections 12, 20(2)(e) and 25 of U.P. Act No. 13 of 1972. The Courts below after placing reliance upon Supreme Court authorities held that even though landlord was aware that society which had been formed was running the school still eviction on the ground of sub-letting was to be ordered as there was no written consent of the landlord. It was further held that even acceptance of rent from the society could not be said to be consent for sub-letting Revisional Court particularly mentioned the Supreme Court judgment of Janki Devi v. G.C. Jain 1994 (5) SCC 337, and held that the facts of that case were similar as the facts of the present case.

Section 20(2)(e) of U.P. Act No. 13 of 1972 is quoted below:

that the tenant has sub-let, in contravention of the provisions of section 25, or as the case may be, of the old Act, the whole or any part of the building.

As in the instant case, building was given to the society in 1968, hence the position as under the old Act (U.P. Act No. 3 of 1947) will have to be seen.

Section 3(1)(e) of the old Act is quoted below:

That the tenant has on or after the first date of October, 1946 sub-let the whole or any portion of the accommodation without the permission of the landlord.

In the authority of Hiralal Kapur Vs. Prabhu Choudhury, , dealing with Delhi Rent Control Act the Supreme Court held that mere acceptance of part of rent through cheque drawn by a trust did not amount to acceptance of the trust as tenant of part of accommodation by the landlord particularly, when the landlord in his letters had categorically stated he did not recognize the trust as tenant. Regarding awareness of the landlord Supreme Court held that:

but this fact only mean that the landlord permitted the tenant to use portion of the premises let out for running the activities of the trust.

Supreme Court mainly placed reliance upon the two letters written by the landlord.

In the said case, no ground of sub tenancy was involved. The tenant had only taken up the ground that the tenancy had subsequently been split into two parts and he remained tenant of only one part and a trust of which he was secretary became tenant of the other portion. This contention was rejected by the Supreme Court holding that tenancy continued to be one.

In the authority of Roop Chand Vs. Gopi Chand Thelia, , sub-letting had taken place contrary to the terms of the lease deed. It was held in the said authority that parting with possession amounted to subletting. In the said case, the permission of the landlord for sub-letting was not even pleaded by the tenant.

In the authority of Pulin Behari Lal Vs. Mahadeb Dutta and Others, , it was held that mere acceptance of rent by landlord after knowledge of fact about sub-letting would not defeat landlord''s claim for eviction. That was a case under West Bengal Premises Tenancy Act, 1956 u/s 13 of which sub-tenancy could be created only with the consent of the landlord in writing and further procedure prescribed u/s 16 of the Act was also required to be followed.

In the authority of Janki Devi v. G.C. Jain 1994 (5) SCC 337. It was held that if premises were leased to an individual for being used as a school but afterwards it was allowed by the lessee to be used for the same purpose by a registered society having an elected management, it amounted to sub-letting even though the tenant was secretary of the management of the society.

The last authority considered by the Courts below particularly the Revisional Court and cited by learned Counsel for landlord is in Ram Saran Vs. Pyare Lal and another, . It was a case from Himachal Pradesh. In the said case also the allegation was that the tenant had sub-let the premises to a society. The tenant contended that the society consisted of his family members which was also carrying on the same business which was earlier being carried out by the tenant individually and landlord being fully aware of the said fact had been accepting rent from the society hence he was estopped from seeking eviction on the ground of sub-letting. The Supreme Court held that under Himachal Pradesh Urban Rent Control Act, 1971 no lawful sub tenancy could be created u/s 14 without written consent of the landlord. Hence even a landlord, hence even if landlord was aware of sub tenancy and was accepting the rent from the society still he was entitled to evict the tenant on the ground of sub-letting.

Learned Counsel for the tenant has placed reliance upon full authority of this Court in Smt. Ram Mani Devi Vs. Rent Control and Eviction Officer and Others, .

In the aforesaid authority it has been held that explanation to section 25 of U.P. Act No. 13 of 1972 is prospective.

On behalf of the tenant an authority has been cited in 1982 (8) ALR 632 holding that if landlord was aware of sub tenancy for about 8 years then suit for eviction on that ground was barred by the principle of acquiescence. Learned Counsel for the applicant has also placed reliance upon Badri Nath Garg v. Shanker Sahai 1990 (1) ARC 93 which has held that for proving sub tenancy it must be proved that subtenant was paying rent to the Chief tenant.

u/s 7(3) of Old Rent Control Act it was provided that:

no tenant shall sub-let any portion of the accommodation in his tenancy except with the permission in writing of the landlord and of the D.M previously obtained.

Parting of exclusive possession is complete evidence of sub-letting. It is not necessary to prove that it was for valuable consideration as it is almost impossible for the landlord to prove this fact. The Single Judge authority of this Court reported in Shyam Kumar Gupta is in direct conflict with the aforesaid Supreme Court Authorities hence it cannot be said to lay down correct law.

Accordingly, in view of the above Supreme Court authorities, knowledge of the landlord about the sub-letting to the society and acceptance of rent by him from the society would not make much difference. Admittedly, there was no written consent of the landlord for the sub-letting. I, therefore, do not find any error in the impugned judgment, decree and order decreeing the suit on the ground of sub-letting. Writ petition is, therefore dismissed.

Tenants petitioners are granted one year''s time to vacate on the following conditions.

For this period of one year, which has been granted to the tenants-petitioners to vacate, they are required to pay Rs. 36000/- (at the rate of Rs. 1,000/- per month) as rent/damages for use and occupation. This amount shall be deposited within six weeks before the J.S.C.C, Lucknow and shall immediately be paid to the landlords respondents.

Within six weeks from today tenants-petitioners shall file an undertaking before the J.S.C.C., Lucknow to the effect that within one year from the date of this judgment, they will willingly vacate and handover possession of the property in dispute to the landlords respondents.

Within six weeks from today tenants-petitioners shall deposit entire arrears of rent due till date before the J.S.C.C. for immediate payment to the landlords.

If within six weeks undertaking is not filed or the decreetal amount and amount of Rs. 36000/- is not deposited then from today till actual eviction tenants shall be liable to pay Rs. 5000/- per month as rent/damages for use and occupation.

Similarly if after filing undertaking and depositing the decreetal amount and aforesaid amount of Rs. 36000/- property in dispute is not vacated within six months then since after one year till actual vacation tenants petitioners shall be liable to pay rent/damages @ Rs. 5000/- per month.

It is needless to add that this direction of payment of Rs. 5000/- per month is in addition to the right of the landlords to file contempt petition and to get the accommodation in dispute vacated through execution.